Hallam and Secretary, Department of Social Services (Social services second review)

[2017] AATA 1160

Hallam and Secretary, Department of Social Services (Social services second review) [2017] AATA 1160 (28 July 2017)

Division:GENERAL DIVISION

File Number:           2016/6303

Re:Kerryn Hallam

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr D. J. Morris, Member

Date:28 July 2017

Place:Melbourne

The Tribunal affirms the decision under review

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D. J. Morris, Member

SOCIAL SERVICES – Disability Support Pension (DSP) – cancellation – 2011 Determination applies – whether qualified – whether impairments assigned 20 or more impairment points – 15 points assigned – not qualified at time cancelled – decision affirmed

Legislation

Social Security Act 1991 (Cth) ss 94(1), 91(1)(a), 94(1)(b), 94(1)(c)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Mr D.J. Morris, Member

28 July 2017

BACKGROUND

1. Mrs Kerryn Hallam, the Applicant in this matter, was granted Disability Support Pension (DSP) in June 2007.   Centrelink conducted a review of her eligibility for DSP and on 23 May 2016 decided to cancel Mrs Hallam’s DSP. Centrelink is the service agency for the Department of Social Services.

2. Mrs Hallam sought a review by a Centrelink Authorised Review Officer (ARO), an officer not involved in the original decision.  On 26 July 2016 the ARO affirmed the decision.  The ARO found that the Applicant’s bipolar affective disorder condition was fully diagnosed, fully treated and fully stabilised and warranted an assignment of 5 points under Table 5 – Mental Health Function of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)  (the Impairment Tables).  The ARO also found that Mrs Hallam’s fibromyalgia was capable of being assigned points under the Impairment Tables and assigned an impairment rating of 5 points under Table 1 – Functions requiring Physical Exertion and Stamina.  Furthermore, the ARO found that the Applicant’s rheumatoid arthritis was also a permanent condition in terms of requirements in the Determination but did not give rise to any additional assignment of impairment points as Mrs Hallam had already been assigned points under Table 1.

3. Mrs Hallam sought a review of the ARO’s decision by the Social Services and Child Support Division of the Tribunal (AAT Level 1).  A hearing was held on 27 October 2016.  AAT Level 1 assigned Mrs Hallam 5 impairment points under Table 5, 10 impairment points under Table 1 and found that a diagnosis of rheumatoid arthritis had been excluded by the Applicant’s doctor, and that there was insufficient evidence regarding a condition of ankylosing spondylitis.

4. The AAT Level 1 assigned Mrs Hallam’s conditions a total of 15 points. Therefore, the requirements of the Act for DSP were not met and the ARO decision was affirmed.

5. Mrs Hallam sought a review of the AAT Level 1 decision by the General Division of the Tribunal (AAT Level 2).

6. The hearing was held on 5 May 2017 by telephone.  The Applicant represented herself, gave evidence and was cross-examined by Ms Kellie Latta, a solicitor with Sparke Helmore Lawyers, representing the Respondent.

7. The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the ‘T’ documents), which were admitted into evidence. The Respondent also lodged a Statement of Facts, Issues and Contentions dated 10 March 2017.

8. The Applicant submitted the following documents, which were admitted into evidence:

   • Medical letter from Dr Robert Proctor, consultant psychiatrist, to Dr Doug Jinks dated 30 November 2016 (Exhibit A1);
   • Psychiatric Report from Dr Proctor to Grampian Disability Advocacy, dated 30 November 2016 (Exhibit A2);
   • Letter from Rae Ward of Hartigan Cleaning, dated 15 February 2017 (Exhibit A3);
   • Statement from Mr Charlie Hallam dated 3 May 2017 with attachments (Exhibit A4).

   Qualification for DSP under the Act

9. The law applicable to the grant of DSP is the Social Security Act 1991 (the Act) and in particular section 94 of that Act.

10. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person applying has –

    (a)a physical, intellectual or psychiatric impairment; and

    (b)impairment of 20 points or more under the Impairment Tables; and

    (c)a continuing inability to work.

11. The Impairment Tables referred to in section 94(1)(b) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).  This Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.

12. The question before the Tribunal is this: was Mrs Hallam qualified for DSP on the date the Department cancelled it, 23 May 2016, in accordance with the law applicable on that date?

    Does the Applicant have a physical, intellectual or psychiatric impairment?

13. The Tribunal had before it a medical report dated 30 March 2016 completed by Dr Doug Jinks, the Applicant’s general practitioner.  Dr Jinks states that bipolar affective disorder is the condition that has the most impact on Mrs Hallam.  He provides a date of onset of 2006, with a corroborative diagnosis by Dr Robert Proctor, psychiatrist.  Dr Jinks lists the medication Mrs Hallam has been prescribed to help manage this condition and states that the current symptoms are moodiness and fatigue and cognitive impairment.  Dr Jinks lists fibromyalgia as Mrs Hallam’ second condition and states that the clinical features of this condition are fatigue, heat intolerance and widespread muscle pain.  He says that there is a corroborative diagnosis of this condition in 2014 by Dr Nigel Wood, rheumatologist.  Although he does not list these conditions separately in this report, Dr Jinks also lists the factors contributing to Mrs Hallam’s fibromyalgia as rheumatoid arthritis and ankylosing spondylosis.

14. The Respondent conceded that Mrs Hallam suffered from impairments at the time of the cancellation of her DSP arising from bipolar disorder, fibromyalgia/spinal condition and rheumatoid arthritis.

15. After considering the medical evidence before it, the Tribunal finds that Mrs Hallam did suffer from impairments on 23 May 2016, namely a mental health condition, a fibromyalgia/spinal condition and a musculoskeletal condition. Therefore, she did satisfy section 94(1)(a) of the Act.

    What is the correct rating under the Impairment Tables?

16. The Impairment Tables are function-based rather than diagnosis-based.  That is, they describe functional activities, abilities, symptoms and limitations.  They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment on an individual; and not to assess conditions (see Part 2, section 5(2)).

17. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.

18. Section 6(2) also provides that the Impairment Tables may only be applied after a person’s medical history, in relation to the condition causing the impairment, has been considered.

19. Under section 6(3) an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than two years.

20. Section 6(4) of the Impairment Tables provides that, for a condition to be permanent, it must be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

21. Section 6(8) provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.   It gives the example of a person who may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.  The Tribunal must therefore consider Mrs Hallam’s medical conditions with reference to the applicable Impairment Tables at the time her DSP was cancelled, not when she originally qualified.

    Bipolar affective disorder condition

22. Dr Jinks stated that Mrs Hallam’s mental health condition had an onset date of 2006.  Dr Proctor stated in a psychiatric report dated 30 November 2016 (Exhibit A2), in regard to the Applicant:

    1She has been suffering from bi-polar effective [sic] disorder, major depression and social phobia.  This has been happening for many years. 

    2The symptoms are severe anxiety, mood swings, depression and social phobia.  The impairment has already persisted for many years and will continue. 

    3Kerryn is taking a variety of medications for this including Duloxetine 60mg 2 x daily, Sodium Valproate 500 mg 2 x daily and Alprazolam 1 mg 1 to 3 daily for anxiety. 

    4She has been taking this treatment for quite a number of years both under my supervision and that of Dr Jinks, her local doctor. 

    5Her condition is stable and I don’t see any other improvement in her condition within the next two years. 

    6The level of impairment for these conditions would be at number 10 on the appropriate scale listed as moderate functional impact both on the activities at home and other activities. 

    It is my opinion that Kerryn is unable to undertake suitable employment of 15 hours per week.  She is currently managing to do 7 hours a week.

23. The Tribunal  had before it a Job Capacity Assessment report dated 25 October 2006 (lodged by the Respondent) which recorded that Mrs Hallam had recently seen a psychiatrist, Dr Singh, who had diagnosed bipolar affective disorder.  The Tribunal also had before it a medical letter from Dr Proctor to Dr Jinks, dated 3 September 2014 (T15, p 165) which reported that Dr Jinks had referred Mrs Hallam back to Dr Proctor some months before but that she had finally come to see him that day.

24. Ms Vicki Hobbs, a counsellor at Grampians Community Health, said in a report dated 23 March 2016 (T16, p 166) that she had been seeing Mrs Hallam on a fortnightly basis since 15 April 2015  about her mental health status and that she would continue to see her on a fortnightly basis “for an extended period”.

25. Mrs Hallam gave frank evidence about her mental health condition at the hearing and her consultations, first with Dr Singh and then with Dr Proctor.  When asked whether she saw Dr Proctor between the end of 2014 and 2016, the Applicant said Dr Proctor had said she should continue to see her general practitioner and see how she fared. Then she saw Dr Proctor in November 2016 but  Dr Proctor had been overseas for some months and then it took almost twelve months for her to  get an appointment to see him.

26. Mrs Hallam said she had been working as a school cleaner.  Her roster was 15 hours per week but she often was not able to achieve that number of hours.  When asked about her self-care, she said she sometimes neglected it and had to be reminded by her husband but that she was embarrassed to discuss this with her medical advisers.

27. She gave evidence about caring for her late brother, who was very sick,  so that she would stay with him two nights a week.  Others performed the physical care he needed; Mrs Hallam said she mainly provided company and helped him with his washing.

28. She said she had not been away to have a break since July 2015. When she did, she stayed in a room in a motel and slept most of the time.  She told the Tribunal that at home her husband has always done most of the cooking and hung the washing out.

29. The relevant Impairment Table for assessing a mental health condition is Table 5 – Mental Health Function.  In the matrix for a moderate functional impact, a person must have difficulties with most of the Descriptors listed.

30. On the evidence before the Tribunal, it appeared that Mrs Hallam may meet Descriptor (1)(a) and perhaps (1)(c).  There was insufficient evidence before the Tribunal in regard to the other Descriptors. And the Tribunal notes that there was little evidence that the Applicant had moderate difficulties with concentration and task completion.  In terms of Descriptor (1)(f), it appeared from the evidence of her employer Rae Ward (Exhibit A3) that Mrs Hallam’s inability sometimes to finish her cleaning shifts was not related to interpersonal conflicts but linked to mood swings and this reflects the symptoms recorded by her general practitioner and consulting psychiatrist.

31. Rae Ward stated that when Mrs Hallam was on a “high” she turned up early for shifts and “is very thorough in what she does”.  This militates against a conclusion that the Applicant satisfies Descriptors 1(d) and (1)(e).

32. Rae Ward said that Mrs Hallam’s depression became more regular in August 2016 and this led to a reduction in the Applicant’s weekly hours, to what the employer thought she could handle.

33. After carefully considering the medical evidence and applying Mrs Hallam’s own evidence to the Descriptors, the Tribunal finds that she should be allocated 5 points under Table 5 for her mental health condition at the time of cancellation in May 2016.

34. It may be that her condition has deteriorated since that time, but that is not something the Tribunal can take into account, although it may be relevant for assessment in regard to a fresh claim for DSP.

    Fibromyalgia and spinal condition

35. A Job Capacity Assessment data gathering pro forma dated 25 October 2006 (T9, p 134) recorded that Mrs Hallam could drive for a maximum of half an hour because of back pain.  She could sit for between half an hour and 45 minutes and could stand for between 5 and 10 minutes,  It stated that Mrs Hallam had difficulty bending and vacuuming, had pain in her arms which made her unable to work above shoulder height and had constant muscle ache.

36. At the hearing, Mrs Hallam gave evidence about her work as a school cleaner.  She said she could no longer vacuum and the school had to modify her duties as her condition “has got worse over the last three or four years”.  She said she had pain through her lower spine so she could not sweep and now wipes down surfaces and cleans glass tops, etc.

37. When asked about the evidence  at the AAT Level 1 review in October 2016, namely that she could do some vacuuming “but in a slow way”, Mrs Hallam said that her condition had worsened now and she could no longer vacuum.

38. In their report dated 17 May 2016, the job capacity assessors recommended that Mrs Hallam’s fibromyalgia condition be assigned 5 impairment points under Table 1 – Functions requiring Physical Exertion and Stamina). 

39. The Tribunal examined the Descriptors in the matrix applicable to Table 1.  Mrs Hallam satisfied Descriptor (1)(a) and (1)(a)(ii) in the moderate functional impact section and Descriptor (b)(i) and (ii).  The Tribunal concludes that the correct allocation of points for this condition is 10 points; there is a moderate functional impact, and so finds.  The work and other tasks that she was doing at the time her DSP was cancelled mean that she does not meet the Descriptors for a 20 point rating under Table 1.

40. There appears to be evidence, from the Applicant and from Rae Ward, that Mrs Hallam might be suffering a deterioration of her condition, but the Tribunal is bound to look at the situation as at the date of cancellation.  Subsequent changes in medical conditions are not something that the Tribunal can  take  into account in this review.

    Rheumatoid arthritis / Ankylosing spondylosis condition

41. There was some dispute among Mrs Hallam’s medical advisers about a diagnosis of rheumatoid arthritis.  Although Dr Jinks refers to it in the medical report he completed in regard to the review of the DSP (T17), Dr Wood had been less sure of this diagnosis in his medical letter to Dr Jinks of 16 September 2013 (T13, p 162).  Dr Wood said that Mrs Hallam’s presentation was consistent with inflammatory peripheral joint arthritis different to her soft tissue rheumatism.  Dr Wood did consider that rheumatoid arthritis was a possibility because of Mrs Hallam’s family history of this condition.  Dr Wood’s conclusion was that the symptoms were consistent with fibromyalgia.  In a further medical letter to Dr Jinks dated 9 December 2013 (T14), Dr Wood stated:

    I reviewed Kerryn today and now off prednisolone for the last month, she really has not developed clinical features of an inflammatory arthritis.  Certainly she describes fluctuating aches and pains but I think this is part of her fibromyalgia and I couldn’t detect peripheral joint synovitis.

42. Given this lack of  certainty about the condition, the Tribunal is not satisfied, on the documents before it, that a rheumatoid arthritis condition had been fully diagnosed at the time of the cancellation of the DSP.  A subsequent bone scan and  single-photon emission computed tomography taken on 3 June 2016 showed arthritic changes in Mrs Hallam’s tarsometatarsal joints, so it maybe that there has been a subsequent and more clarifying diagnosis.

43. In her evidence at the hearing, Mrs Hallam agreed with the Respondent’s suggestion that Dr Wood had concluded that she did not have arthritis in her foot and said Dr Wood had told her fibromyalgia can be an “early start” to rheumatoid arthritis.

44. Based on the medical evidence, the Tribunal concludes that this condition was not fully diagnosed at the time of cancellation in May 2016.  Therefore,  it cannot be considered for the assignment of impairment points.  The Tribunal notes that some of the functional impacts on Mrs Hallam may cross with those of her fibromyalgia, but impairment points have been allocated for that condition and section 10(5) of the Determination states that:

    Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.

    Conclusion

45. The Tribunal finds that the Applicant should be assigned a total of 15 impairment points for her medical impairments at the time of the cancellation of her DSP: 10 points under Table 1 – Functions requiring Physical Exertion and Stamina, and 5 points under Table 5 – Mental Health Function.  Therefore, Mrs Hallam did not satisfy section 94(1)(b) of the Act, which requires at least 20 impairment points for a person to be qualified for DSP.

46. Section 94 of the Act is cumulative; that is each part of it must be satisfied for a person to be qualified for the benefit. As the Tribunal has found that the Applicant did not satisfy section 94(1)(b) at the time of cancellation, it is not necessary to go on to consider whether Mrs Hallam had a continuing inability to work under section 94(1)(c).

47. This outcome will be disappointing for Mrs Hallam but the Tribunal must assess her eligibility at the time of the cancellation of the DSP, not what her present health condition might be.  The Tribunal notes that it is always open for a person to make a fresh application for DSP; which will be considered in accordance with the requirements of the Act at the time of claim.

    DECISION

48. The Tribunal affirms the decision under review.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

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Associate

Dated: 28 July 2017

Date of hearing:	5 May 2017
Applicant:	In person
Advocate for the Respondent:	Kellie Latta
Solicitors for the Respondent:	Sparke Helmore Lawyers